The Spanish Minister for Energy, Tourism and Digital Agenda (currently responsible for IP) has confirmed that Spain is maintaining its position of not participating in the unitary patent system. The Minister spoke in a recent plenary session of the Congress of Deputies (the lower chamber of Spain’s parliament) here in response to the question by an opposition party MP as to whether that was still the position. All opposition parties have expressed their support for joining the unitary patent and Unified Patent Court (UPC) project in previous parliamentary debates and, as this new question shows, the subject of participation in the system is still very much alive in Spanish politics.
Regarding the reasons for non-participation in the new system, as reported here, in March 2017 the minister then responsible for IP had said that they revolved around Spanish not being one of its official languages. The MP now raising the question said she considered that those reasons did not make much sense. As well as noting that registration of a European patent requires use of a language other than Spanish, and also that the unitary patent system will provide some compensation for translation costs, she said that the government’s support of single market legislation and harmonisation was contradictory to its promotion of the coexistence of two patent systems. Regarding the language regime, the Minister, while acknowledging the MP’s points, referred to the potential additional burden on Spanish companies (particularly SMEs) defending a claim for unitary patent infringement, or assessing whether they would infringe. (Unlike a ‘classical’ European patent, a unitary patent would not need to be translated into Spanish to be valid in Spain.) Regarding the single market/harmonisation point, the Minister responded that the unitary patent system was not a European harmonisation but instead was formed by the enhanced cooperation procedure for those countries wanting to participate. In addition to the language regime, the Minister indicated the following were reasons for non-participation:
the uncertainty of the system’s future due to both the challenge in the German Constitutional Court and Brexit;
a Spanish company would still be able to obtain a unitary patent and enforce it (outside Spain) in the UPC; and
the higher costs of litigation in the UPC than in a Spanish court, which would be a particular problem for SMEs.